Without Deed’s Joint Tenancy, Estate Ends up in Probate

We help many clients transfer Deeds—it’s generally a simple process that we can accomplish quickly, sometimes in a day. The following example highlights the importance of what is called vesting, or the way in which title to a Deed is held. It seems like a small thing, but a Deed is the legal document that identifies the property owner. Without the title, it is impossible to buy or sell a home. And as our client discovered, she also couldn’t update her Living Trust. This is a cautionary tale, and unfortunately, we see this kind of situation all too often.

“Sandra” came in to our office to update her Living Trust—something we recommend that people do periodically, with important life events. A physical therapist, Sandra had moved to the Bay Area from Boston ten years earlier to be closer to her mother, her daughter and grandchildren. She and her mother had bought a cottage in Oakland together, and she was delighted to be there for both her mother and daughter at this point in her life.

Sandra quickly adapted to life in the Bay Area

She found a great job, made new friends and loved the Bay Area weather. She’d invested in a stock that was doing very well, had purchased a life insurance policy and had welcomed a new granddaughter into the family. The only sad note was that her 80-year old mother had died the winter before after a relatively short battle with cancer. These were all circumstances that prompted her to update her Living Trust.

We ran into problems when we got to her Oakland home

We began updating Sandra’s Trust, but ran into problems with her home. The Deed didn’t state that she and her mother were “joint tenants”, which meant that full title didn’t automatically pass to Sandra when mom died. The result: 50% of the property—the half that her mother had owned–would now have to go through Probate to determine ownership. Sandra would have to go through Probate before she could update her Living Trust.

About Joint Tenancy

Joint tenancy works well when couples (married or not) acquire real estate or other valuable property together. When one joint owner dies, the surviving owner(s) automatically gets the deceased owner’s share of the joint tenancy property. This automatic transfer to the survivor is called the “right of survivorship.” The property doesn’t go through Probate court.

Generally, the new owner fills out a straightforward form and presents it, along with the death certificate of the deceased owner, to the county clerk to generate a new Deed, with its vesting revisited.